CLD-377 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-1043

___________

ARTHUR D'AMARIO, III, 

 Appellant 

v.

U.S. ATTORNEY GENERAL

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1-15-cv-03793)

District Judge: Honorable Timothy J. Savage

____________________________________

Submitted on Motions to Reopen and to Proceed In Forma Pauperis, and 

for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

August 11, 2016

Before: FISHER, JORDAN and VANASKIE, Circuit Judges

(Opinion filed: August 29, 2016)

_________

OPINION*

_________

PER CURIAM

Arthur D’Amario, III, appealed from an order of the United States District Court 

for the District of New Jersey, which denied his petition for a writ of error coram nobis 

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
2

and/or for a writ of audita querela. His appeal was dismissed for failure to pay the filing 

fee. D’Amario has now filed a motion to proceed in forma pauperis (“IFP”) and a motion 

to reopen the appeal. We hereby reopen the appeal and grant his motion to proceed IFP. 

Because no substantial question is raised by this appeal, we will summarily affirm the 

District Court’s judgment. See Third Circuit LAR 27.4 and I.O.P. 10.6.1

In his petition, D’Amario once again was attempting to challenge his two 

convictions for threatening federal judges. First, he claimed that he had new evidence 

from an unidentified person he knew in jail in 1999 that D’Amario’s trial attorney was an 

FBI informant. Second, he claimed that he had new evidence by way of an opinion 

authored by Judge Irenas in 2003. Third, he sought to rely on Elonis v. United States, 

135 S. Ct. 2001 (2015), to claim that the trial court gave improper jury instructions. We 

agree with the District Court that D’Amario could not raise these claims via a petition for 

a writ of error coram nobis or a petition for a writ of audita querela.2

 

 

constitute binding precedent.

1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise de novo review over 

legal issues arising from the denial of coram nobis and audita querela relief. See United 

States v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011) (per curiam); United States v. Richter, 

510 F.3d 103, 104 (2d Cir. 2007) (per curiam). No certificate of appealability is 

necessary for this appeal. See United States v. Baptiste, 223 F.3d 188, 189 n.1 (3d Cir. 

2000) (per curiam). 

2 We recently denied D’Amario authorization to file a second or successive § 2255 

motion raising these same claims. See In re: Arthur D’Amario, III, C.A. No. 15-3462 

(order entered Nov. 17, 2015).
3

Coram nobis is an extraordinary remedy that “has traditionally been used to attack 

[federal] convictions with continuing consequences when the petitioner is no longer ‘in 

custody’ for purposes of 28 U.S.C. § 2255.”3

 Baptiste, 223 F.3d at 189. The writ is 

available only to address errors that are “fundamental and go to the jurisdiction of the 

trial court, thus rendering the trial itself invalid.” Rhines, 640 F.3d at 71 (internal 

quotation marks omitted). Here, D’Amario seeks to raise claims (improper jury 

instructions, the motivations of his attorney) that could have been raised in a motion 

pursuant to 28 U.S.C. § 2255. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 

2009) (per curiam) (§ 2255 is presumptive means of challenging federal conviction or 

sentence); United States v. Denedo, 556 U.S. 904, 911 (2009) (“Another limit, of course, 

is that an extraordinary remedy may not issue when alternative remedies, such as habeas 

corpus, are available.”). As D’Amario’s claims are not the type that “render the trial 

itself invalid,” the District Court properly declined to consider coram nobis relief. 

Audita querela is similarly an extraordinary remedy that may be available to fill 

gaps in the current system of post-conviction relief. Massey, 581 F.3d at 174. But 

because D’Amario’s claims could have been brought in a § 2255 motion, we agree with 

the District Court that here there are “no gaps to fill.” Thus, the District Court properly 

declined to consider audita querela relief.

For the foregoing reasons, we will affirm the District Court’s judgment. 

 3 D’Amario has completed his sentences.